I

107TH CONGRESS

1ST SESSION H. R. 912

To reduce the risk that innocent persons may be executed, and for other

purposes.

IN THE HOUSE OF REPRESENTATIVES

MARCH 7, 2001

Mr. DELAHUNT (for himself, Mr. LAHOOD, Mr. CONYERS, Mr. BASS, Mr.

SCOTT, Mr. BOEHLERT, Mr. ABERCROMBIE, Mrs. EMERSON, Mr. ALLEN,

Mr. FOLEY, Mr. BALDACCI, Ms. HART, Ms. BALDWIN, Mr. HOUGHTON,

Mr. BARRETT of Wisconsin, Mr. KING, Ms. BERKLEY, Mr. MCHUGH, Mr.

BERMAN, Mrs. MORELLA, Mr. BLUMENAUER, Mr. PETRI, Mr. BONIOR,

Ms. PRYCE of Ohio, Ms. BROWN of Florida, Mr. QUINN, Mr. BROWN of

Ohio, Mr. RAMSTAD, Mr. CAPUANO, Mr. SCARBOROUGH, Ms. CARSON of

Indiana, Mr. SHAYS, Mrs. CHRISTENSEN, Mr. SMITH of New Jersey, Mr.

CLAY, Mr. UPTON, Mr. COYNE, Mr. WALSH, Mr. CROWLEY, Ms.

DEGETTE, Ms. DELAURO, Mr. ENGEL, Ms. ESHOO, Mr. EVANS, Mr.

FALEOMAVAEGA, Mr. FARR of California, Mr. FATTAH, Mr. FILNER, Mr.

FORD, Mr. FRANK, Mr. GONZALEZ, Mr. GUTIERREZ, Mr. HASTINGS of

Florida, Mr. HILLIARD, Mr. HINCHEY, Mr. HOEFFEL, Ms. HOOLEY of

Oregon, Mr. ISRAEL, Mr. JACKSON of Illinois, Ms. JACKSON-LEE of

Texas, Mr. JEFFERSON, Mr. KENNEDY of Rhode Island, Mr. KILDEE,

Ms. KILPATRICK, Mr. KIND, Mr. KUCINICH, Mr. LAFALCE, Mr.

LAMPSON, Mr. LANTOS, Ms. LEE, Mr. LEWIS of Georgia, Mr. LIPINSKI,

Mrs. LOWEY, Mr. LUTHER, Mr. MARKEY, Mrs. MCCARTHY of New York,

MS. MCCARTHY of Missouri, Ms. MCCOLLUM, Mr. MCDERMOTT, Mr.

MCGOVERN, Ms. MCKINNEY, Mr. MCNULTY, Mrs. MEEK of Florida, Mr.

MEEKS of New York, Mr. GEORGE MILLER of California, Mr. MOAKLEY,

Mr. MOORE, Mr. NADLER, Mr. NEAL of Massachusetts, Ms. NORTON,

Mr. OLVER, Mr. PASTOR, Mr. PAYNE, Ms. PELOSI, Mr. POMEROY, Mr.

PRICE of North Carolina, Ms. RIVERS, Mr. RODRIGUEZ, Mr. ROEMER,

Ms. SANCHEZ, Mr. SANDLIN, Mr. SAWYER, Ms. SCHAKOWSKY, Mr.

SHERMAN, Ms. SLAUGHTER, Mr. SMITH of Washington, Mr. STARK, Mr.

STUPAK, Mr. THOMPSON of Mississippi, Mr. TIERNEY, Mrs. JONES of

Ohio, Mr. UDALL of Colorado, Ms. VELA ́ZQUEZ, Ms. WATERS, Mr. WATT

of North Carolina, Mr. WAXMAN, Mr. WEINER, Mr. WEXLER, and Mr.

WYNN) introduced the following bill; which was referred to the Committee

on the Judiciary
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A BILL

To reduce the risk that innocent persons may be executed,

and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Innocence Protection Act of 2001’’.

6 (b) TABLE OF CONTENTS.—The table of contents for

7 this Act is as follows:

Sec. 1. Short title; table of contents.

TITLE I—EXONERATING THE INNOCENT THROUGH DNA TESTING

Sec. 101. Findings and purposes.

Sec. 102. Post-conviction DNA testing in Federal criminal justice system.

Sec. 103. Post-conviction DNA testing in State criminal justice systems.

Sec. 104. Prohibition pursuant to section 5 of the 14th amendment.

Sec. 105. Grants to prosecutors for DNA testing programs.

TITLE II—ENSURING COMPETENT LEGAL SERVICES IN CAPITAL

CASES

Sec. 201. National Commission on Capital Representation.

Sec. 202. Capital defense incentive grants.

Sec. 203. Amendments to prison grant programs.

Sec. 204. Effect on procedural default rules.

Sec. 205. Capital defense resource grants.

TITLE III—MISCELLANEOUS PROVISIONS

Sec. 301. Increased compensation in Federal cases.

Sec. 302. Compensation in State death penalty cases.

Sec. 303. Certification requirement in Federal death penalty prosecutions.

Sec. 304. Alternative of life imprisonment without possibility of release.

Sec. 305. Right to an informed jury.

Sec. 306. Annual reports.

Sec. 307. Sense of Congress regarding the execution of juvenile offenders and

the mentally retarded.
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1 TITLE I—EXONERATING THE IN2 NOCENT THROUGH DNA

3 TESTING

4 SEC. 101. FINDINGS AND PURPOSES.

5 (a) FINDINGS.—Congress makes the following find6 ings:

7 (1) Over the past decade, deoxyribonucleic acid

8 testing (referred to in this section as ‘‘DNA test9 ing’’) has emerged as the most reliable forensic tech10 nique for identifying criminals when biological mate11 rial is left at a crime scene.

12 (2) Because of its scientific precision, DNA

13 testing can, in some cases, conclusively establish the

14 guilt or innocence of a criminal defendant. In other

15 cases, DNA testing may not conclusively establish

16 guilt or innocence, but may have significant pro17 bative value to a finder of fact.

18 (3) While DNA testing is increasingly common19 place in pretrial investigations today, it was not

20 widely available in cases tried prior to 1994. More21 over, new forensic DNA testing procedures have

22 made it possible to get results from minute samples

23 that could not previously be tested, and to obtain

24 more informative and accurate results than earlier

25 forms of forensic DNA testing could produce. Con-
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1 sequently, in some cases convicted inmates have

2 been exonerated by new DNA tests after earlier tests

3 had failed to produce definitive results.

4 (4) Since DNA testing is often feasible on rel5 evant biological material that is decades old, it can,

6 in some circumstances, prove that a conviction that

7 predated the development of DNA testing was based

8 upon incorrect factual findings. Uniquely, DNA evi9 dence showing innocence, produced decades after a

10 conviction, provides a more reliable basis for estab11 lishing a correct verdict than any evidence proffered

12 at the original trial. DNA testing, therefore, can and

13 has resulted in the post-conviction exoneration of in14 nocent men and women.

15 (5) In more than 80 cases in the United States,

16 DNA evidence has led to the exoneration of innocent

17 men and women who were wrongfully convicted.

18 This number includes at least 10 individuals sen19 tenced to death, some of whom came within days of

20 being executed.

21 (6) In more than a dozen cases, post-conviction

22 DNA testing that has exonerated an innocent person

23 has also enhanced public safety by providing evi24 dence that led to the identification of the actual per25 petrator.
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1 (7) Experience has shown that it is not unduly

2 burdensome to make DNA testing available to in3 mates. The cost of that testing is relatively modest

4 and has decreased in recent years. Moreover, the

5 number of cases in which post-conviction DNA test6 ing is appropriate is small, and will decrease as pre7 trial testing becomes more common.

8 (8) Under current Federal and State law, it is

9 difficult to obtain post-conviction DNA testing be10 cause of time limits on introducing newly discovered

11 evidence. Under Federal law, motions for a new trial

12 based on newly discovered evidence must be made

13 within 3 years after conviction. In most States, those

14 motions must be made not later than 2 years after

15 conviction, and sometimes much sooner. The result

16 is that laws intended to prevent the use of evidence

17 that has become less reliable over time have been

18 used to preclude the use of DNA evidence that re19 mains highly reliable even decades after trial.

20 (9) The National Commission on the Future of

21 DNA Evidence, a Federal panel established by the

22 Department of Justice and comprised of law en23 forcement, judicial, and scientific experts, has urged

24 that post-conviction DNA testing be permitted in the

25 relatively small number of cases in which it is appro-
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1 priate, notwithstanding procedural rules that could

2 be invoked to preclude that testing, and notwith3 standing the inability of an inmate to pay for the

4 testing.

5 (10) Since New York passed the Nation’s first

6 post-conviction DNA statute in 1994, only a few

7 States have adopted post-conviction DNA testing

8 procedures, and some of these procedures are unduly

9 restrictive. Moreover, only a handful of States have

10 passed legislation requiring that biological evidence

11 be adequately preserved.

12 (11) In 1994, Congress passed the DNA Identi13 fication Act, which authorized the construction of

14 the Combined DNA Index System, a national data15 base to facilitate law enforcement exchange of DNA

16 identification information, and authorized funding to

17 improve the quality and availability of DNA testing

18 for law enforcement identification purposes. In

19 2000, Congress passed the DNA Analysis Backlog

20 Elimination Act and the Paul Coverdell Forensic

21 Sciences Improvement Act, which together author22 ized an additional $908,000,000 over 6 years in

23 DNA-related grants.

24 (12) Congress should continue to provide finan25 cial assistance to the States to increase the capacity
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1 of State and local laboratories to carry out DNA

2 testing for law enforcement identification purposes.

3 At the same time, Congress should insist that States

4 which accept financial assistance make DNA testing

5 available to both sides of the adversarial system in

6 order to enhance the reliability and integrity of that

7 system.

8 (13) In Herrera v. Collins, 506 U.S. 390

9 (1993), a majority of the members of the Court sug10 gested that a persuasive showing of innocence made

11 after trial would render the execution of an inmate

12 unconstitutional.

13 (14) It shocks the conscience and offends social

14 standards of fairness and decency to execute inno15 cent persons or to deny inmates the opportunity to

16 present persuasive evidence of their innocence.

17 (15) If biological material is not subjected to

18 DNA testing in appropriate cases, there is a signifi19 cant risk that persuasive evidence of innocence will

20 not be detected and, accordingly, that innocent per21 sons will be unconstitutionally executed.

22 (16) Given the irremediable constitutional harm

23 that would result from the execution of an innocent

24 person and the failure of many States to ensure that

25 innocent persons are not sentenced to death, a Fed-
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1 eral statute assuring the availability of DNA testing

2 and a chance to present the results of testing in

3 court is a congruent and proportional prophylactic

4 measure to prevent constitutional injuries from oc5 curring.

6 (b) PURPOSES.—The purposes of this title are to—

7 (1) substantially implement the Recommenda8 tions of the National Commission on the Future of

9 DNA Evidence in the Federal criminal justice sys10 tem, by authorizing DNA testing in appropriate

11 cases;

12 (2) prevent the imposition of unconstitutional

13 punishments through the exercise of power granted

14 by clause 1 of section 8 and clause 2 of section 9

15 of article I of the Constitution of the United States

16 and section 5 of the 14th amendment to the Con17 stitution of the United States; and

18 (3) ensure that wrongfully convicted persons

19 have an opportunity to establish their innocence

20 through DNA testing, by requiring the preservation

21 of DNA evidence for a limited period.
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1 SEC. 102. POST-CONVICTION DNA TESTING IN FEDERAL

2 CRIMINAL JUSTICE SYSTEM.

3 (a) IN GENERAL.—Part VI of title 28, United States

4 Code, is amended by inserting after chapter 155 the fol5 lowing:

6 ‘‘CHAPTER 156—DNA TESTING

‘‘Sec.

‘‘2291. DNA testing.

‘‘2292. Preservation of evidence.

7 ‘‘§ 2291. DNA testing

8 ‘‘(a) APPLICATION.—Notwithstanding any other pro9 vision of law, a person convicted of a Federal crime may

10 apply to the appropriate Federal court for DNA testing

11 to support a claim that the person did not commit—

12 ‘‘(1) the Federal crime of which the person was

13 convicted; or

14 ‘‘(2) any other offense that a sentencing au15 thority may have relied upon when it sentenced the

16 person with respect to the Federal crime either to

17 death or to an enhanced term of imprisonment as a

18 career offender or armed career criminal.

19 ‘‘(b) NOTICE TO GOVERNMENT.—The court shall no20 tify the Government of an application made under sub21 section (a) and shall afford the Government an oppor22 tunity to respond.

23 ‘‘(c) PRESERVATION ORDER.—The court shall order

24 that all evidence secured in relation to the case that could
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1 be subjected to DNA testing must be preserved during the

2 pendency of the proceeding. The court may impose appro3 priate sanctions, including criminal contempt, for the in4 tentional destruction of evidence after such an order.

5 ‘‘(d) ORDER.—

6 ‘‘(1) IN GENERAL.—The court shall order DNA

7 testing pursuant to an application made under sub8 section (a) upon a determination that—

9 ‘‘(A) the evidence is still in existence, and

10 in such a condition that DNA testing may be

11 conducted;

12 ‘‘(B) the evidence was never previously

13 subjected to DNA testing, or was not subject to

14 the type of DNA testing that is now requested

15 and that may resolve an issue not resolved by

16 previous testing;

17 ‘‘(C) the proposed DNA testing uses a sci18 entifically valid technique; and

19 ‘‘(D) the proposed DNA testing has the

20 scientific potential to produce new, noncumu21 lative evidence material to the claim of the ap22 plicant that the applicant did not commit—

23 ‘‘(i) the Federal crime of which the

24 applicant was convicted; or
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1 ‘‘(ii) any other offense that a sen2 tencing authority may have relied upon

3 when it sentenced the applicant with re4 spect to the Federal crime either to death

5 or to an enhanced term of imprisonment as

6 a career offender or armed career criminal.

7 ‘‘(2) LIMITATION.—The court shall not order

8 DNA testing under paragraph (1) if the Government

9 proves by a preponderance of the evidence that the

10 application for testing was made to unreasonably

11 delay the execution of sentence or administration of

12 justice, rather than to support a claim described in

13 paragraph (1)(D).

14 ‘‘(3) TESTING PROCEDURES.—If the court or15 ders DNA testing under paragraph (1), the court

16 shall impose reasonable conditions on such testing

17 designed to protect the integrity of the evidence and

18 the testing process and the reliability of the test re19 sults.

20 ‘‘(e) COST.—The cost of DNA testing ordered under

21 subsection (c) shall be borne by the Government or the

22 applicant, as the court may order in the interests of jus23 tice, except that an applicant shall not be denied testing

24 because of an inability to pay the cost of testing.
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1 ‘‘(f) COUNSEL.—The court may at any time appoint

2 counsel for an indigent applicant under this section pursu3 ant to section 3006A(a)(2)(B) of title 18.

4 ‘‘(g) POST-TESTING PROCEDURES.—

5 ‘‘(1) INCONCLUSIVE RESULTS.—If the results of

6 DNA testing conducted under this section are incon7 clusive, the court may order such further testing as

8 may be appropriate or dismiss the application.

9 ‘‘(2) RESULTS UNFAVORABLE TO APPLICANT.—

10 If the results of DNA testing conducted under this

11 section inculpate the applicant, the court shall—

12 ‘‘(A) dismiss the application;

13 ‘‘(B) assess the applicant for the cost of

14 the testing; and

15 ‘‘(C) make such further orders as may be

16 appropriate.

17 ‘‘(3) RESULTS FAVORABLE TO APPLICANT.—If

18 the results of DNA testing conducted under this sec19 tion are favorable to the applicant, the court shall

20 order a hearing and thereafter make such further

21 orders as may be appropriate under applicable rules

22 and statutes regarding post-conviction proceedings,

23 notwithstanding any provision of law that would bar

24 such hearing or orders as untimely.

25 ‘‘(h) RULES OF CONSTRUCTION.—
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1 ‘‘(1) OTHER POST-CONVICTION RELIEF UNAF2 FECTED.—Nothing in this section shall be construed

3 to limit the circumstances under which a person may

4 obtain DNA testing or other post-conviction relief

5 under any other provision of law.

6 ‘‘(2) FINALITY RULE UNAFFECTED.—An appli7 cation under this section shall not be considered a

8 motion under section 2255 for purposes of deter9 mining whether it or any other motion is a second

10 or successive motion under section 2255.

11 ‘‘(i) DEFINITIONS.—In this section:

12 ‘‘(1) APPROPRIATE FEDERAL COURT.—The

13 term ‘appropriate Federal court’ means—

14 ‘‘(A) the United States District Court

15 which imposed the sentence from which the ap16 plicant seeks relief; or

17 ‘‘(B) in relation to a crime under the Uni18 form Code of Military Justice, the United

19 States District Court having jurisdiction over

20 the place where the court martial was convened

21 that imposed the sentence from which the appli22 cant seeks relief, or the United States District

23 Court for the District of Columbia, if no United

24 States District Court has jurisdiction over the

25 place where the court martial was convened.
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1 ‘‘(2) FEDERAL CRIME.—The term ‘Federal

2 crime’ includes a crime under the Uniform Code of

3 Military Justice.

4 ‘‘§ 2292. Preservation of evidence

5 ‘‘(a) IN GENERAL.—Notwithstanding any other pro6 vision of law and subject to subsection (b), the Govern7 ment shall preserve all evidence that was secured in rela8 tion to the investigation or prosecution of a Federal crime

9 (as that term is defined in section 2291(i)), and that could

10 be subjected to DNA testing, for not less than the period

11 of time that any person remains subject to incarceration

12 in connection with the investigation or prosecution.

13 ‘‘(b) EXCEPTIONS.—The Government may dispose of

14 evidence before the expiration of the period of time de15 scribed in subsection (a) if—

16 ‘‘(1) other than subsection (a), no statute, regu17 lation, court order, or other provision of law requires

18 that the evidence be preserved; and

19 ‘‘(2)(A)(i) the Government notifies any person

20 who remains incarcerated in connection with the in21 vestigation or prosecution and any counsel of record

22 for such person (or, if there is no counsel of record,

23 the public defender for the judicial district in which

24 the conviction for such person was imposed), of the
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1 intention of the Government to dispose of the evi2 dence and the provisions of this chapter; and

3 ‘‘(ii) the Government affords such person not

4 less than 180 days after such notification to make

5 an application under section 2291(a) for DNA test6 ing of the evidence; or

7 ‘‘(B)(i) the evidence must be returned to its

8 rightful owner, or is of such a size, bulk, or physical

9 character as to render retention impracticable; and

10 ‘‘(ii) the Government takes reasonable measures

11 to remove and preserve portions of the material evi12 dence sufficient to permit future DNA testing.

13 ‘‘(c) REMEDIES FOR NONCOMPLIANCE.—

14 ‘‘(1) GENERAL LIMITATION.—Nothing in this

15 section shall be construed to give rise to a claim for

16 damages against the United States, or any employee

17 of the United States, any court official or officer of

18 the court, or any entity contracting with the United

19 States.

20 ‘‘(2) CIVIL PENALTY.—

21 ‘‘(A) IN GENERAL.—Notwithstanding para22 graph (1), an individual who knowingly violates

23 a provision of this section or a regulation pre24 scribed under this section shall be liable to the

25 United States for a civil penalty in an amount
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1 not to exceed $1,000 for the first violation and

2 $5,000 for each subsequent violation, except

3 that the total amount imposed on the individual

4 for all such violations during a calendar year

5 may not exceed $25,000.

6 ‘‘(B) PROCEDURES.—The provisions of

7 section 405 of the Controlled Substances Act

8 (21 U.S.C. 844a) (other than subsections (a)

9 through (d) and subsection (j)) shall apply to

10 the imposition of a civil penalty under subpara11 graph (A) in the same manner as such provi12 sions apply to the imposition of a penalty under

13 section 405.

14 ‘‘(C) PRIOR CONVICTION.—A civil penalty

15 may not be assessed under subparagraph (A)

16 with respect to an act if that act previously re17 sulted in a conviction under chapter 73 of title

18 18.

19 ‘‘(3) REGULATIONS.—

20 ‘‘(A) IN GENERAL.—The Attorney General

21 shall promulgate regulations to implement and

22 enforce this section.

23 ‘‘(B) CONTENTS.—The regulations shall

24 include the following:
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1 ‘‘(i) Disciplinary sanctions, including

2 suspension or termination from employ3 ment, for employees of the Department of

4 Justice who knowingly or repeatedly violate

5 a provision of this section.

6 ‘‘(ii) An administrative procedure

7 through which parties can file formal com8 plaints with the Department of Justice al9 leging violations of this section.’’.

10 (b) CRIMINAL PENALTY.—Chapter 73 of title 18,

11 United States Code, is amended by inserting at the end

12 the following:

13 ‘‘§ 1519. Destruction or altering of DNA evidence

14 ‘‘Whoever willfully or maliciously destroys, alters,

15 conceals, or tampers with evidence that is required to be

16 preserved under section 2292 of title 28, United States

17 Code, with intent to—

18 ‘‘(1) impair the integrity of that evidence;

19 ‘‘(2) prevent that evidence from being subjected

20 to DNA testing; or

21 ‘‘(3) prevent the production or use of that evi22 dence in an official proceeding,

23 shall be fined under this title or imprisoned not

24 more than 5 years, or both.’’.

25 (c) TECHNICAL AND CONFORMING AMENDMENTS.—
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1 (1) The analysis for part VI of title 28, United

2 States Code, is amended by inserting after the item

3 relating to chapter 155 the following:

‘‘156. DNA testing ............................................................................... 2291’’.

4 (2) The table of contents for Chapter 73 of title

5 18, United States Code, is amended by inserting

6 after the item relating to section 1518 the following:

‘‘1519. Destruction or altering of DNA Evidence.’’.

7 SEC. 103. POST-CONVICTION DNA TESTING IN STATE CRIMI8 NAL JUSTICE SYSTEMS.

9 (a) CERTIFICATION REGARDING POST-CONVICTION

10 TESTING AND PRESERVATION OF DNA EVIDENCE.—If

11 any part of funds received from a grant made under a

12 program listed in subsection (b) is to be used to develop

13 or improve a DNA analysis capability in a forensic labora14 tory, or to collect, analyze, or index DNA samples for law

15 enforcement identification purposes, the State applying for

16 that grant must certify that it will—

17 (1) make post-conviction DNA testing available

18 to any person convicted of a State crime in a man19 ner consistent with section 2291 of title 28, United

20 States Code, and, if the results of such testing are

21 favorable to such person, allow such person to apply

22 for post-conviction relief, notwithstanding any provi-
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1 sion of law that would bar such application as un2 timely; and

3 (2) preserve all evidence that was secured in re4 lation to the investigation or prosecution of a State

5 crime, and that could be subjected to DNA testing,

6 for not less than the period of time that such evi7 dence would be required to be preserved under sec8 tion 2292 of title 28, United States Code, if the evi9 dence were related to a Federal crime.

10 (b) PROGRAMS AFFECTED.—The certification re11 quirement established by subsection (a) shall apply with

12 respect to grants made under the following programs:

13 (1) DNA ANALYSIS BACKLOG ELIMINATION

14 GRANTS.—Section 2 of the DNA Analysis Backlog

15 Elimination Act of 2000 (Public Law 106–546).

16 (2) PAUL COVERDELL NATIONAL FORENSIC

17 SCIENCES IMPROVEMENT GRANTS.—Part BB of title

18 I of the Omnibus Crime Control and Safe Streets

19 Act of 1968 (as added by Public Law 106–561).

20 (3) DNA IDENTIFICATION GRANTS.—Part X of

21 title I of the Omnibus Crime Control and Safe

22 Streets Act of 1968 (42 U.S.C. 3796kk et seq.).

23 (4) DRUG CONTROL AND SYSTEM IMPROVE24 MENT GRANTS.—Subpart 1 of part E of title I of
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1 the Omnibus Crime Control and Safe Streets Act of

2 1968 (42 U.S.C. 3751 et seq.).

3 (5) PUBLIC SAFETY AND COMMUNITY POLICING

4 GRANTS.—Part Q of title I of the Omnibus Crime

5 Control and Safe Streets Act of 1968 (42 U.S.C.

6 3796dd et seq.).

7 (c) EFFECTIVE DATE.—This section shall apply with

8 respect to any grant made on or after the date that is

9 1 year after the date of enactment of this Act.

10 SEC. 104. PROHIBITION PURSUANT TO SECTION 5 OF THE

11 14TH AMENDMENT.

12 (a) APPLICATION FOR DNA TESTING.—No State

13 shall deny an application for DNA testing made by a pris14 oner in State custody who is under sentence of death, if

15 the proposed DNA testing has the scientific potential to

16 produce new, noncumulative evidence material to the claim

17 of the prisoner that the prisoner did not commit—

18 (1) the offense for which the prisoner was sen19 tenced to death; or

20 (2) any other offense that a sentencing author21 ity may have relied upon when it sentenced the pris22 oner to death.

23 (b) OPPORTUNITY TO PRESENT RESULTS OF DNA

24 TESTING.—No State shall rely upon a time limit or proce25 dural default rule to deny a prisoner in State custody who
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1 is under sentence of death an opportunity to present in

2 an appropriate State court new, noncumulative DNA re3 sults that establish a reasonable probability that the pris4 oner did not commit an offense described in subsection

5 (a).

6 (c) REMEDY.—A prisoner in State custody who is

7 under sentence of death may enforce subsections (a) and

8 (b) in a civil action for declaratory or injunctive relief,

9 filed either in a State court of general jurisdiction or in

10 a district court of the United States, naming an executive

11 or judicial officer of the State as defendant.

12 (d) FINALITY RULE UNAFFECTED.—An application

13 under this section shall not be considered an application

14 for a writ of habeas corpus under section 2254 of title

15 28, United States Code, for purposes of determining

16 whether it or any other application is a second or succes17 sive application under section 2254.

18 SEC. 105. GRANTS TO PROSECUTORS FOR DNA TESTING

19 PROGRAMS.

20 Section 501(b) of title I of the Omnibus Crime Con21 trol and Safe Streets Act of 1968 (42 U.S.C. 3751(b))

22 is amended by—

23 (1) striking ‘‘and’’ at the end of paragraph

24 (25);
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1 (2) striking the period at the end of paragraph

2 (26) and inserting ‘‘; and’’; and

3 (3) adding at the end the following:

4 ‘‘(27) prosecutor-initiated programs to conduct

5 a systematic review of convictions to identify cases

6 in which DNA testing is appropriate and to offer

7 DNA testing to inmates in such cases.’’.

8 TITLE II—ENSURING COM9 PETENT LEGAL SERVICES IN

10 CAPITAL CASES

11 SEC. 201. NATIONAL COMMISSION ON CAPITAL REPRESEN12 TATION.

13 (a) ESTABLISHMENT.—There is established the Na14 tional Commission on Capital Representation (referred to

15 in this section as the ‘‘Commission’’).

16 (b) DUTIES.—The Commission shall—

17 (1) survey existing and proposed systems for

18 appointing counsel in capital cases, and the amounts

19 actually paid by governmental entities for capital de20 fense services; and

21 (2) formulate standards specifying the elements

22 of an effective system for providing adequate rep23 resentation, including counsel and investigative, ex24 pert, and other services necessary for adequate rep25 resentation, to—
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1 (A) indigents charged with offenses for

2 which capital punishment is sought;

3 (B) indigents who have been sentenced to

4 death and who seek appellate or collateral re5 view in State court; and

6 (C) indigents who have been sentenced to

7 death and who seek certiorari review in the Su8 preme Court of the United States.

9 (c) ELEMENTS.—The elements of an effective system

10 described in subsection (b)(2) shall include—

11 (1) a centralized and independent appointing

12 authority, which shall—

13 (A) recruit attorneys who are qualified to

14 be appointed in the proceedings specified in

15 subsection (b)(2);

16 (B) draft and annually publish a roster of

17 qualified attorneys;

18 (C) draft and annually publish qualifica19 tions and performance standards that attorneys

20 must satisfy to be listed on the roster and pro21 cedures by which qualified attorneys are identi22 fied;

23 (D) periodically review the roster, monitor

24 the performance of all attorneys appointed, pro25 vide a mechanism by which members of the rel-
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1 evant State Bar may comment on the perform2 ance of their peers, and delete the name of any

3 attorney who fails to satisfactorily complete reg4 ular training programs on the representation of

5 clients in capital cases, fails to meet perform6 ance standards in a case to which the attorney

7 is appointed, or otherwise fails to demonstrate

8 continuing competence to represent clients in

9 capital cases;

10 (E) conduct or sponsor specialized training

11 programs for attorneys representing clients in

12 capital cases;

13 (F) appoint lead counsel and co-counsel

14 from the roster to represent a client in a capital

15 case promptly upon receiving notice of the need

16 for an appointment from the relevant State

17 court; and

18 (G) report the appointment, or the failure

19 of the client to accept such appointment, to the

20 court requesting the appointment;

21 (2) adequate compensation of private attorneys

22 for actual time and service, computed on an hourly

23 basis and at a reasonable hourly rate in light of the

24 qualifications and experience of the attorney and the

25 local market for legal representation in cases reflect-
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1 ing the complexity and responsibility of capital

2 cases;

3 (3) reimbursement of private attorneys and

4 public defender organizations for attorney expenses

5 reasonably incurred in the representation of a client

6 in a capital case; and

7 (4) reimbursement of private attorneys and

8 public defender organizations for the reasonable

9 costs of law clerks, paralegals, investigators, experts,

10 scientific tests, and other support services necessary

11 in the representation of a client in a capital case.

12 (d) MEMBERSHIP.—

13 (1) NUMBER AND APPOINTMENT.—The Com14 mission shall be composed of 9 members, as follows:

15 (A) Four members appointed by the Presi16 dent on the basis of their expertise and emi17 nence within the field of criminal justice, 2 of

18 whom have 10 years or more experience in rep19 resenting defendants in State capital pro20 ceedings, including trial, direct appeal, or post21 conviction proceedings, and 2 of whom have 10

22 years or more experience in prosecuting defend23 ants in such proceedings.
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1 (B) Two members appointed by the Con2 ference of Chief Justices, from among the mem3 bers of the judiciaries of the several States.

4 (C) Two members appointed by the Chief

5 Justice of the United States, from among the

6 members of the Federal Judiciary.

7 (D) The Chairman of the Committee on

8 Defender Services of the Judicial Conference of

9 the United States, or a designee of the Chair10 man.

11 (2) EX OFFICIO MEMBER.—The Executive Di12 rector of the State Justice Institute, or a designee

13 of the Executive Director, shall serve as an ex officio

14 nonvoting member of the Commission.

15 (3) POLITICAL AFFILIATION.—Not more than 2

16 members appointed under paragraph (1)(A) may be

17 of the same political party.

18 (4) GEOGRAPHIC DISTRIBUTION.—The appoint19 ment of individuals under paragraph (1) shall, to the

20 maximum extent practicable, be made so as to en21 sure that different geographic areas of the United

22 States are represented in the membership of the

23 Commission.

24 (5) TERMS.—Members of the Commission ap25 pointed under subparagraphs (A), (B), and (C) of
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1 paragraph (1) shall be appointed for the life of the

2 Commission.

3 (6) DEADLINE FOR APPOINTMENTS.—All ap4 pointments to the Commission shall be made not

5 later than 45 days after the date of enactment of

6 this Act.

7 (7) VACANCIES.—A vacancy in the Commission

8 shall not affect its powers, and shall be filled in the

9 same manner in which the original appointment was

10 made.

11 (8) NO COMPENSATION.—Members of the Com12 mission shall serve without compensation for their

13 service.

14 (9) TRAVEL EXPENSES.—Members of the Com15 mission shall receive travel expenses, including per

16 diem in lieu of subsistence, in accordance with sec17 tions 5702 and 5703 of title 5, United States Code.

18 (10) QUORUM.—A majority of the members of

19 the Commission shall constitute a quorum, but a

20 lesser number may hold hearings.

21 (11) INITIAL MEETING.—The initial meeting of

22 the Commission shall occur not later than 30 days

23 after the date on which all initial members of the

24 Commission have been appointed.
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1 (12) CHAIRPERSON.—At the initial meeting of

2 the Commission, a majority of the members of the

3 Commission present and voting shall elect a Chair4 person from among the members of the Commission

5 appointed under paragraph (1).

6 (e) STAFF.—

7 (1) IN GENERAL.—The Commission may ap8 point and fix the pay of such personnel as the Com9 mission considers appropriate.

10 (2) EXPERTS AND CONSULTANTS.—The Com11 mission may procure temporary and intermittent

12 services under section 3109(b) of title 5, United

13 States Code.

14 (f) POWERS.—

15 (1) INFORMATION-GATHERING ACTIVITIES.—

16 The Commission may, for the purpose of carrying

17 out this section, hold hearings, receive public com18 ment and testimony, initiate surveys, and undertake

19 such other activities to gather information as the

20 Commission may find advisable.

21 (2) OBTAINING OFFICIAL INFORMATION.—The

22 Commission may secure directly from any depart23 ment or agency of the United States such informa24 tion as the Commission considers necessary to carry

25 out this section. Upon request of the chairperson of
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1 the Commission, the head of that department or

2 agency shall provide such information, except to the

3 extent prohibited by law.

4 (3) ADMINISTRATIVE SUPPORT SERVICES.—

5 Upon the request of the Commission, the Adminis6 trator of General Services shall provide to the Com7 mission, on a reimbursable basis, the administrative

8 support services necessary for the Commission to

9 carry out its responsibilities under this section.

10 (4) POSTAL SERVICES.—The Commission may

11 use the United States mails in the same manner and

12 under the same conditions as other departments and

13 agencies of the United States.

14 (g) REPORT.—

15 (1) IN GENERAL.—The Commission shall sub16 mit a report to the President and the Congress be17 fore the end of the 1-year period beginning after the

18 first meeting of all members of the Commission.

19 (2) CONTENTS.—The report submitted under

20 paragraph (1) shall contain—

21 (A) a comparative analysis of existing and

22 proposed systems for appointing counsel in cap23 ital cases, and the amounts actually paid by

24 governmental entities for capital defense serv25 ices; and
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1 (B) such standards as are formulated by

2 the Commission pursuant to subsection (b)(2),

3 together with such commentary and rec4 ommendations as the Commission considers ap5 propriate.

6 (h) TERMINATION.—The Commission shall terminate

7 90 days after submitting the report under subsection (g).

8 (i) EXPENSES OF COMMISSION.—There are author9 ized to be appropriated to pay any expenses of the Com10 mission such sums as may be necessary not to exceed

11 $1,000,000. Any sums appropriated for such purposes are

12 authorized to remain available until expended, or until the

13 termination of the Commission pursuant to subsection (h),

14 whichever occurs first.

15 SEC. 202. CAPITAL DEFENSE INCENTIVE GRANTS.

16 The State Justice Institute Act of 1984 (42 U.S.C.

17 10701 et seq.) is amended by inserting after section 207

18 the following:

19 ‘‘SEC. 207A. CAPITAL DEFENSE INCENTIVE GRANTS.

20 ‘‘(a) PROGRAM AUTHORIZED.—The State Justice In21 stitute (referred to in this section as the ‘Institute’) may

22 make grants to State agencies and organizations respon23 sible for the administration of standards of legal com24 petence for counsel in capital cases, for the purposes of—
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1 ‘‘(1) implementing new mechanisms or sup2 porting existing mechanisms for providing represen3 tation in capital cases that comply with the stand4 ards promulgated by the National Commission on

5 Capital Representation pursuant to section 201(b) of

6 the Innocence Protection Act of 2001; and

7 ‘‘(2) otherwise improving the quality of legal

8 representation in capital cases.

9 ‘‘(b) USE OF FUNDS.—Funds made available under

10 this section may be used for any purpose that the Institute

11 determines is likely to achieve the purposes described in

12 subsection (a), including—

13 ‘‘(1) training and development of training ca14 pacity to ensure that attorneys assigned to capital

15 cases meet such standards;

16 ‘‘(2) augmentation of attorney, paralegal, inves17 tigator, expert witness, and other staff and services

18 necessary for capital defense; and

19 ‘‘(3) development of new mechanisms for ad20 dressing complaints about attorney competence and

21 performance in capital cases.

22 ‘‘(c) APPLICATIONS.—

23 ‘‘(1) IN GENERAL.—No grant may be made

24 under this section unless an application has been

25 submitted to, and approved by, the Institute.
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1 ‘‘(2) APPLICATION.—An application for a grant

2 under this section shall be submitted in such form,

3 and contain such information, as the Institute may

4 prescribe by regulation or guideline.

5 ‘‘(3) CONTENTS.—In accordance with the regu6 lations or guidelines established by the Institute,

7 each application for a grant under this section

8 shall—

9 ‘‘(A) include a long-term strategy and de10 tailed implementation program that reflects

11 consultation with the organized bar of the

12 State, the highest court of the State, and the

13 Attorney General of the State, and reflects con14 sideration of a statewide strategy; and

15 ‘‘(B) specify plans for obtaining necessary

16 support and continuing the proposed program

17 following the termination of Federal support.

18 ‘‘(d) RULES AND REGULATIONS.—The Institute may

19 issue rules, regulations, guidelines, and instructions, as

20 necessary, to carry out the purposes of this section.

21 ‘‘(e) TECHNICAL ASSISTANCE AND TRAINING.—To

22 assist and measure the effectiveness and performance of

23 programs funded under this section, the Institute may

24 provide technical assistance and training, as required.
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1 ‘‘(f) GRANT PERIOD.—A grant under this section

2 shall be made for a period not longer than 3 years, but

3 may be renewed on such terms as the Institute may re4 quire.

5 ‘‘(g) LIMITATIONS ON USE OF FUNDS.—

6 ‘‘(1) NONSUPPLANTING REQUIREMENT.—Funds

7 made available under this section shall not be used

8 to supplant State or local funds, but shall be used

9 to supplement the amount of funds that would, in

10 the absence of Federal funds received under this sec11 tion, be made available from States or local sources.

12 ‘‘(2) FEDERAL SHARE.—The Federal share of a

13 grant made under this part may not exceed—

14 ‘‘(A) for the first fiscal year for which a

15 program receives assistance, 75 percent of the

16 total costs of such program; and

17 ‘‘(B) for subsequent fiscal years for which

18 a program receives assistance, 50 percent of the

19 total costs of such program.

20 ‘‘(3) ADMINISTRATIVE COSTS.—A State agency

21 or organization may not use more than 5 percent of

22 the funds it receives from this section for adminis23 trative expenses, including expenses incurred in pre24 paring reports under subsection (h).
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1 ‘‘(h) REPORT.—Each State agency or organization

2 that receives a grant under this section shall submit to

3 the Institute, at such times and in such format as the In4 stitute may require, a report that contains—

5 ‘‘(1) a summary of the activities carried out

6 under the grant and an assessment of the effective7 ness of such activities in achieving ongoing compli8 ance with the standards formulated pursuant to sec9 tion 201(b) of the Innocence Protection Act of 2001

10 and improving the quality of representation in cap11 ital cases; and

12 ‘‘(2) such other information as the Institute

13 may require.

14 ‘‘(i) REPORT TO CONGRESS.—Not later than 90 days

15 after the end of each fiscal year for which grants are made

16 under this section, the Institute shall submit to Congress

17 a report that includes—

18 ‘‘(1) the aggregate amount of grants made

19 under this part to each State agency or organization

20 for such fiscal year;

21 ‘‘(2) a summary of the information provided in

22 compliance with subsection (h); and

23 ‘‘(3) an independent evaluation of the effective24 ness of the programs that received funding under

25 this section in achieving ongoing compliance with the
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1 standards formulated pursuant to section 201(b) of

2 the Innocence Protection Act of 2001 and improving

3 the quality of representation in capital cases.

4 ‘‘(j) DEFINITIONS.—In this section—

5 ‘‘(1) the term ‘capital case’—

6 ‘‘(A) means any criminal case in which a

7 defendant prosecuted in a State court is subject

8 to a sentence of death or in which a death sen9 tence has been imposed; and

10 ‘‘(B) includes all proceedings filed in con11 nection with the case, up to and including di12 rect appellate review and post-conviction review

13 in State court; and

14 ‘‘(2) the term ‘representation’ includes counsel

15 and investigative, expert, and other services nec16 essary for adequate representation.

17 ‘‘(k) AUTHORIZATION OF APPROPRIATIONS.—

18 ‘‘(1) IN GENERAL.—There are authorized to be

19 appropriated to carry out this section, in addition to

20 other amounts authorized by this Act, to remain

21 available until expended, $50,000,000 for fiscal year

22 2002, and such sums as may be necessary for fiscal

23 years 2003 and 2004.

24 ‘‘(2) TECHNICAL ASSISTANCE AND TRAINING.—

25 Not more than 3 percent of the amount made avail-
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1 able under paragraph (1) for a fiscal year shall be

2 available for technical assistance and training activi3 ties by the Institute under subsection (e).

4 ‘‘(3) EVALUATIONS.—Up to 5 percent of the

5 amount authorized to be appropriated under para6 graph (1) in any fiscal year may be used for admin7 istrative expenses, including expenses incurred in

8 preparing reports under subsection (i).’’.

9 SEC. 203. AMENDMENTS TO PRISON GRANT PROGRAMS.

10 (a) IN GENERAL.—Subtitle A of title II of the Violent

11 Crime Control and Law Enforcement Act of 1994 (42

12 U.S.C. 13701 et seq.) is amended by adding at the end

13 the following:

14 ‘‘SEC. 20110. STANDARDS FOR CAPITAL REPRESENTATION.

15 ‘‘(a) WITHHOLDING OF FUNDS FOR NONCOMPLI16 ANCE WITH STANDARDS FOR CAPITAL REPRESENTA17 TION.—

18 ‘‘(1) IN GENERAL.—The Attorney General shall

19 withhold a portion of any grant funds awarded to a

20 State or unit of local government under this subtitle

21 on the first day of each fiscal year after the second

22 fiscal year beginning after September 30, 2001, if

23 such State, or the State to which such unit of local

24 government appertains—
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1 ‘‘(A) prescribes, authorizes, or permits the

2 penalty of death for any offense, and sought,

3 imposed, or administered such penalty at any

4 time during the preceding 5 fiscal years; and

5 ‘‘(B) has not established or does not main6 tain an effective system for providing adequate

7 representation for indigent persons in capital

8 cases, in compliance with the standards formu9 lated by the National Commission on Capital

10 Representation pursuant to section 201(b) of

11 the Innocence Protection Act of 2001.

12 ‘‘(2) WITHHOLDING FORMULA.—The amount to

13 be withheld under paragraph (1) shall be, in the

14 first fiscal year that a State is not in compliance, 10

15 percent of any grant funds awarded under this sub16 title to such State and any unit of local government

17 appertaining thereto, and shall increase by 10 per18 cent for each year of noncompliance thereafter, up

19 to a maximum of 60 percent.

20 ‘‘(3) DISPOSITION OF WITHHELD FUNDS.—

21 Funds withheld under this subsection from appor22 tionment to any State or unit of local government

23 shall be allotted by the Attorney General and paid

24 to the States and units of local government receiving

25 a grant under this subtitle, other than any State re-
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1 ferred to in paragraph (1), and any unit of local

2 government appertaining thereto, in a manner equiv3 alent to the manner in which the allotment under

4 this subtitle was determined.

5 ‘‘(b) WAIVER OF WITHHOLDING REQUIREMENT.—

6 ‘‘(1) IN GENERAL.—The Attorney General may

7 waive in whole or in part the application of the re8 quirement of subsection (a) for any 1-year period

9 with respect to any State, where immediately pre10 ceding such 1-year period the Attorney General finds

11 that such State has made and continues to make a

12 good faith effort to comply with the standards for13 mulated by the National Commission on Capital

14 Representation pursuant to section 201(b) of the In15 nocence Protection Act of 2001.

16 ‘‘(2) LIMITATION ON WAIVER AUTHORITY.—The

17 Attorney General may not grant a waiver under

18 paragraph (1) with respect to any State for 2 con19 secutive 1-year periods.

20 ‘‘(3) LIMITATION ON USE OF FUNDS.—If the

21 Attorney General grants a waiver under paragraph

22 (1), the State shall be required to use the total

23 amount of grant funds awarded to such State or any

24 unit of local government appertaining thereto under

25 this subtitle that would have been withheld under
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1 subsection (a) but for the waiver to improve the ca2 pability of such State to provide adequate represen3 tation in capital cases.

4 ‘‘(c) REPORT TO CONGRESS.—Not later than 180

5 days after the end of each fiscal year for which grants

6 are made under this subtitle, the Attorney General shall

7 submit to Congress a report that includes, with respect

8 to each State that prescribes, authorizes, or permits the

9 penalty of death for any offense—

10 ‘‘(1) a detailed description of such State’s sys11 tem for providing representation to indigent persons

12 in capital cases;

13 ‘‘(2) the amount of any grant funds withheld

14 under subsection (a) for such fiscal year from such

15 State or any unit of local government appertaining

16 thereto, and an explanation of why such funds were

17 withheld; and

18 ‘‘(3) the amount of any grant funds released to

19 such State for such fiscal year pursuant to a waiver

20 by the Attorney General under subsection (b), and

21 an explanation of why waiver was granted.’’.

22 (b) TECHNICAL AND CONFORMING AMENDMENT.—

23 The table of contents in section 2 of the Violent Crime

24 Control and Law Enforcement Act of 1994 is amended
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1 by inserting after the item relating to section 20109 the

2 following:

‘‘Sec. 110. Standards for capital representation.’’.

3 SEC. 204. EFFECT ON PROCEDURAL DEFAULT RULES.

4 (a) IN GENERAL.—Section 2254(e) of title 28,

5 United States Code, is amended—

6 (1) in paragraph (1), by striking ‘‘In a pro7 ceeding’’ and inserting ‘‘Except as provided in para8 graph (3), in a proceeding’’; and

9 (2) by adding at the end the following:

10 ‘‘(3) In a proceeding instituted by an applicant

11 under sentence of death, the court shall neither pre12 sume a finding of fact made by a State court to be

13 correct nor decline to consider a claim on the ground

14 that the applicant failed to raise such claim in State

15 court at the time and in the manner prescribed by

16 State law, if—

17 ‘‘(A) the applicant was financially unable

18 to obtain adequate representation at the stage

19 of the State proceedings at which the State

20 court made the finding of fact or the applicant

21 failed to raise the claim, and the applicant did

22 not waive representation by counsel; and

23 ‘‘(B) the State did not provide representa24 tion to the applicant under a State system for

25 providing representation that satisfied the
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1 standards formulated by the National Commis2 sion on Capital Representation pursuant to sec3 tion 201(b) of the Innocence Protection Act of

4 2001.’’.

5 (b) NO RETROACTIVE EFFECT.—The amendments

6 made by this section shall not apply to any case in which

7 the relevant State court proceeding occurred before the

8 end of the first fiscal year following the formulation of

9 standards by the National Commission on Capital Rep10 resentation pursuant to section 201(b) of the Innocence

11 Protection Act of 2001.

12 SEC. 205. CAPITAL DEFENSE RESOURCE GRANTS.

13 Section 3006A of title 18, United States Code, is

14 amended—

15 (1) by redesignating subsections (i), (j), and (k)

16 as subsections (j), (k), and (l), respectively; and

17 (2) by inserting after subsection (h) the fol18 lowing:

19 ‘‘(i) CAPITAL DEFENSE RESOURCE GRANTS.—

20 ‘‘(1) DEFINITIONS.—In this subsection—

21 ‘‘(A) the term ‘capital case’—

22 ‘‘(i) means any criminal case in which

23 a defendant prosecuted in a State court is

24 subject to a sentence of death or in which

25 a death sentence has been imposed; and
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1 ‘‘(ii) includes all proceedings filed in

2 connection with the case, including trial,

3 appellate, and Federal and State post-con4 viction proceedings;

5 ‘‘(B) the term ‘defense services’ includes—

6 ‘‘(i) recruitment of counsel;

7 ‘‘(ii) training of counsel; and

8 ‘‘(iii) legal and administrative support

9 and assistance to counsel; and

10 ‘‘(C) the term ‘Director’ means the Direc11 tor of the Administrative Office of the United

12 States Courts.

13 ‘‘(2) GRANT AWARD AND CONTRACT AUTHOR14 ITY.—Notwithstanding subsection (g), the Director

15 shall award grants to, or enter into contracts with,

16 public agencies or private nonprofit organizations for

17 the purpose of providing defense services in capital

18 cases.

19 ‘‘(3) PURPOSES.—Grants and contracts award20 ed under this subsection shall be used in connection

21 with capital cases in the jurisdiction of the grant re22 cipient for 1 or more of the following purposes:

23 ‘‘(A) Enhancing the availability, com24 petence, and prompt assignment of counsel.
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1 ‘‘(B) Encouraging continuity of represen2 tation between Federal and State proceedings.

3 ‘‘(C) Increasing the efficiency with which

4 such cases are resolved.

5 ‘‘(4) GUIDELINES.—The Director, in consulta6 tion with the Judicial Conference of the United

7 States, shall develop guidelines to ensure that de8 fense services provided by recipients of grants and

9 contracts awarded under this subsection are con10 sistent with applicable legal and ethical proscriptions

11 governing the duties of counsel in capital cases.

12 ‘‘(5) CONSULTATION.—In awarding grants and

13 contracts under this subsection, the Director shall

14 consult with representatives of the highest State

15 court, the organized bar, and the defense bar of the

16 jurisdiction to be served by the recipient of the grant

17 or contract, and shall ensure coordination with

18 grants administered by the State Justice Institute

19 pursuant to section 207A of the State Justice Insti20 tute Act of 1984.’’.

21 TITLE III—MISCELLANEOUS

22 PROVISIONS

23 SEC. 301. INCREASED COMPENSATION IN FEDERAL CASES.

24 Section 2513(e) of title 28, United States Code, is

25 amended by striking ‘‘$5,000’’ and inserting ‘‘$50,000 for
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1 each 12-month period of incarceration, except that a plain2 tiff who was unjustly sentenced to death may be awarded

3 not more than $100,000 for each 12-month period of in4 carceration.’’.

5 SEC. 302. COMPENSATION IN STATE DEATH PENALTY

6 CASES.

7 Section 20105(b)(1) of the Violent Crime Control and

8 Law Enforcement Act of 1994 (42 U.S.C. 13705(b)(1))

9 is amended by—

10 (1) striking ‘‘and’’ at the end of subparagraph

11 (A);

12 (2) striking the period at the end of subpara13 graph (B) and inserting ‘‘; and’’; and

14 (3) adding at the end the following:

15 ‘‘(C) provide assurances to the Attorney

16 General that the State, if it prescribes, author17 izes, or permits the penalty of death for any of18 fense, has established or will establish not later

19 than 18 months after the enactment of the In20 nocence Protection Act of 2001, effective proce21 dures for—

22 ‘‘(i) reasonably compensating persons

23 found to have been unjustly convicted of

24 an offense against the State and sentenced

25 to death; and
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1 ‘‘(ii) investigating the causes of such

2 unjust convictions, publishing the results

3 of such investigations, and taking steps to

4 prevent such errors in future cases.’’.

5 SEC. 303. CERTIFICATION REQUIREMENT IN FEDERAL

6 DEATH PENALTY PROSECUTIONS.

7 (a) IN GENERAL.—Chapter 228 of title 28, United

8 States Code, is amended by adding at the end the fol9 lowing:

10 ‘‘§ 3599. Certification requirement

11 ‘‘(a) CERTIFICATION BY ATTORNEY GENERAL.—The

12 Government shall not seek a sentence of death in any case

13 brought before a court of the United States except upon

14 the certification in writing of the Attorney General, which

15 function of certification may not be delegated, that the

16 Federal interest in the prosecution is more substantial

17 than the interests of the State or local authorities.

18 ‘‘(b) REQUIREMENTS.—A certification under sub19 section (a) shall state the basis on which the certification

20 was made and the reasons for the certification.

21 ‘‘(c) STATE INTEREST.—In States where the imposi22 tion of a sentence of death is not authorized by law, the

23 fact that the maximum Federal sentence is death does not

24 constitute a more substantial interest in Federal prosecu25 tion.
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1 ‘‘(d) DEFINITION OF STATE.—For purposes of this

2 section, the term ‘State’ includes a State of the United

3 States, the District of Columbia, and any commonwealth,

4 territory, or possession of the United States.

5 ‘‘(e) RULE OF CONSTRUCTION.—This section does

6 not create any rights, substantive or procedural, enforce7 able at law by any party in any matter civil or criminal.’’.

8 (b) TECHNICAL AND CONFORMING AMENDMENT.—

9 The analysis for chapter 228 of title 28, United States

10 Code, is amended by adding at the end the following:

‘‘3599. Certification requirement.’’.

11 SEC. 304. ALTERNATIVE OF LIFE IMPRISONMENT WITHOUT

12 POSSIBILITY OF RELEASE.

13 (a) PURPOSE.—The purpose of this section is to clar14 ify that juries in death penalty prosecutions brought under

15 the drug kingpin statute—like juries in all other Federal

16 death penalty prosecutions—have the option of recom17 mending life imprisonment without possibility of release.

18 (b) CLARIFICATION.—Section 408(l) of the Con19 trolled Substances Act (21 U.S.C. 848(l)), is amended by

20 striking the first 2 sentences and inserting the following:

21 ‘‘Upon a recommendation under subsection (k) that the

22 defendant should be sentenced to death or life imprison23 ment without possibility of release, the court shall sen24 tence the defendant accordingly. Otherwise, the court shall

25 impose any lesser sentence that is authorized by law.’’.
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1 SEC. 305. RIGHT TO AN INFORMED JURY.

2 Section 20105(b)(1) of the Violent Crime Control and

3 Law Enforcement Act of 1994 (42 U.S.C. 13705(b)(1)),

4 as amended by section 302 of this Act, is amended by—

5 (1) striking ‘‘and’’ at the end of subparagraph

6 (B);

7 (2) striking the period at the end of subpara8 graph (C) and inserting ‘‘; and’’; and

9 (3) adding at the end the following:

10 ‘‘(D) provide assurances to the Attorney

11 General that in any capital sentencing pro12 ceeding occurring after the date of enactment of

13 the Innocence Protection Act of 2001 in which

14 the jury has a role in determining the sentence

15 imposed on the defendant, the court, at the re16 quest of the defendant, shall inform the jury of

17 all statutorily authorized sentencing options in

18 the particular case, including applicable parole

19 eligibility rules and terms.’’.

20 SEC. 306. ANNUAL REPORTS.

21 (a) REPORT.—Not later than 2 years after the date

22 of enactment of this Act, and annually thereafter, the At23 torney General shall prepare and transmit to Congress a

24 report concerning the administration of capital punish25 ment laws by the Federal Government and the States.
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1 (b) REPORT ELEMENTS.—The report required under

2 subsection (a) shall include substantially the same cat3 egories of information as are included in the Bureau of

4 Justice Statistics Bulletin entitled ‘‘Capital Punishment

5 1999’’ (December 2000, NCJ 184795), and shall also in6 clude the following additional categories of information, if

7 such information can practicably be obtained:

8 (1) The percentage of death-eligible cases in

9 which a death sentence is sought, and the percent10 age in which it is imposed.

11 (2) The race of the defendants in death-eligible

12 cases, including death-eligible cases in which a death

13 sentence is not sought, and the race of the victims.

14 (3) The percentage of capital cases in which

15 counsel is retained by the defendant, and the per16 centage in which counsel is appointed by the court.

17 (4) The percentage of capital cases in which life

18 without parole is available as an alternative to a

19 death sentence, and the sentences imposed in such

20 cases.

21 (5) The percentage of capital cases in which life

22 without parole is not available as an alternative to

23 a death sentence, and the sentences imposed in such

24 cases.
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1 (6) The frequency with which various statutory

2 aggravating factors are invoked by the prosecution.

3 (7) The percentage of cases in which a death

4 sentence or a conviction underlying a death sentence

5 is vacated, reversed, or set aside, and a short state6 ment of the reasons therefore.

7 (c) REQUEST FOR ASSISTANCE.—In compiling the in8 formation referred to in subsection (b), the Attorney Gen9 eral shall, when necessary, request assistance from State

10 and local prosecutors, defense attorneys, and courts, as

11 appropriate. Requested assistance, whether provided or

12 denied by a State or local official or entity, shall be noted

13 in the reports referred to in subsection (a).

14 (d) PUBLIC DISCLOSURE.—The Attorney General or

15 the Director of the Bureau of Justice Assistance, as ap16 propriate, shall ensure that the reports referred to in sub17 section (a) are—

18 (1) distributed to national print and broadcast

19 media; and

20 (2) posted on an Internet website maintained

21 by the Department of Justice.
50

•HR 912 IH

1 SEC. 307. SENSE OF CONGRESS REGARDING THE EXECU2 TION OF JUVENILE OFFENDERS AND THE

3 MENTALLY RETARDED.

4 It is the sense of Congress that the death penalty is

5 disproportionate and offends contemporary standards of

6 decency when applied to a person who is mentally retarded

7 or who had not attained the age of 18 years at the time

8 of the offense.

Æ